Schaffer v. Horizon Pharma PLC et al
| George S. Schaffer |
| Horizon Pharma PLC, Timothy P. Walbert, Paul W. Hoelscher and Robert J. De Vaere |
| 1:2016cv01763 |
| March 8, 2016 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| Albany |
| Jesse M. Furman |
| Securities/Commodities/Exchanges |
| 15 U.S.C. ยง 78 |
| Plaintiff |
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Filing
122
OPINION AND ORDER. For all of the reasons stated above, Plaintiffs claims under Section 10(b) of the Exchange Act and SEC Rule 10b-5 must be and are dismissed. It follows that their claims for control person liability under Section 20(a), which depen d upon the existence of a "primary violation," also fail. See, e.g., First Jersey Sec., Inc., 101 F.3d at 1472. Moreover, Plaintiffs' claims under Sections 11, 12(a)(2), and 15 of the Securities Act also fail. That leaves only the ques tion of whether Plaintiffs should be granted leave to amend their complaint for a second time. The Court declines to grant Plaintiffs leave for a combination of three reasons. For starters, amendment here would likely be futile. Indeed, given the var ious grounds for the Court's decision, there is nothing to suggest that Plaintiffs would be able to state a valid claim should the Court grant them leave to amend. See, e.g., Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) (" Where it appears that granting leave to amend is unlikely to be productive... it is not an abuse of discretion to deny leave to amend."). Second, and related, Plaintiffs have not "given any indication that [they are] in possession of facts that would cure the problems identified in this opinion." Clark v. Kitt, No. 12-CV-8061 (CS), 2014 WL 4054284, at *15 (S.D.N.Y. Aug. 15, 2014), aff'd, 619 F. App'x 34 (2d Cir. 2015); see also TechnoMarine SA v. Giftports, Inc., 758 F.3 d 493, 505 (2d Cir. 2014) ("A plaintiff need not be given leave to amend if it fails to specify... how amendment would cure the pleading deficiencies in its complaint."). Finally, in granting leave to file the amended consolidated complaint , the Court expressly warned that Plaintiffs would not be given another opportunity to address the issues raised in Defendants' motion to dismiss. (See Docket No. 113). See, e.g., Ruotolo v. City of N.Y., 514 F.3d 184, 191 (2d Cir. 2008) (affirm ing the district courts denial of leave to amend in part because of the previous opportunities that the plaintiff had received to amend the complaint). The Clerk of Court is directed to terminate Docket Nos. 106 and 109, and to close this case. SO OR DERED. re: 109 MOTION to Dismiss Plaintiffs' Amended Consolidated Complaint filed by Ronald Pauli, Jeff Himawan, Paul W. Hoelscher, John J. Kody, Gino Santini, Horizon Pharma PLC, Virinder Nohria, William F. Daniel, Robert F. Ca rey, Michael Grey, H. Thomas Watkins, Timothy P. Walbert, 106 MOTION to Dismiss Plaintiffs' Claims Under Section 11 and Section 12 of the Securities Act. filed by Cowen & Company LLC, Jefferies LLC, Morgan Stanley & Co., LLC, Citigroup Global Markets, Inc. (Signed by Judge Jesse M. Furman on 1/18/2018) (rjm)
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Filing
67
MEMORANDUM OPINION AND ORDER re: 57 MOTION for Reargument re: 56 Order on Motion to Appoint Lead Plaintiff(s), Order on Motion to Appoint Counsel, filed by Employees' Retirement System of the Puerto Rico Electric Powe r Authority: because ERS-PREPA points to no contrary controlling authority or overlooked data, its motion for reconsideration is DENIED. In its initial brief, ERS-PREPA made a request that, if reconsideration were denied, the Court stay the Or der to allow ERS to take an immediate appeal to the Second Circuit. (ERS-PREPA's Rearg. Mem. 2). There is no mention of that somewhat offhand request in ERS-PREPA's reply brief, however, so the Court deems it to be abandoned. See, e.g., Hanig v. Yorktown Cent. Sch. Dist., 384 F. Supp. 2d 710, 723 (S.D.N.Y. 2005). In any event, the request borders on frivolous. For one thing, orders appointing a lead plaintiff under the PSLRA are not immediately appealable. See Metro Servs. Inc. v. Wiggins, 158 F.3d 162, 165 (2d Cir. 1998) (dismissing appeal of order appointing lead plaintiff for lack of subject-matter jurisdiction); accord Z-Seven Fund, Inc. v. Motorcar Parts & Accessories, 231 F.3d 1215, 1217-19 (9th Cir. 2000); Fla. St ate Bd. of Admin. v. Brick, 210 F.3d 371 (6th Cir. 2000) (table); Pindus v. Fleming Cos. Inc., 146 F.3d 1224, 1226 (10th Cir. 1998). For another, ERS-PREPA makes no effort whatsoever to establish that the requirements for a stay are met here (see ERS-PREPA's Rearg. Mem. 2), and for good reason: They are not. The Clerk of Court is directed to terminate Docket No. 57. (Signed by Judge Jesse M. Furman on 6/27/2016) (tn)
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